High Court of Ireland Decisions

1. This is an application by the Applicants, each of whom resides at Blackglen Road, Sandyford, County Dublin, for the following reliefs:

2. By Order of this Court made on 24th July, 1995 by Lavan J. the Applicants were granted leave to apply for the foregoing reliefs by way of application for judicial review.

3. The evidence adduced by the Applicants in support of their application was an Affidavit of the second named Applicant, Jack Whelan. Mr. Whelan averred that the residents of the Blackglen Road area first became aware of "the proposal to establish a permanent halting site at the Blackglen Road for forty caravans" as a result of a report in the Evening Herald on 19th May, 1995. There had been no public consultation and, moreover, it appeared that the local Councillors had only become aware of the proposal when they had been informed by the first named Respondent of his decision at a meeting on the previous day. Mr. Whelan averred that none of the Applicants has any animosity towards travellers, but they object to the proposal having regard to its size, the manner in which it was originated, the location on the Blackglen Road and the other matters set out in his Affidavit. In essence, the Applicants base their entitlement to the relief they claim on the opinions of three experts, John Sugars of John Sugars & Partners, Architects, Brian J. McCann of Thorburn Colquhoun, Consulting Engineers and Dr. Brian Meehan, Planning Consultant, whose reports were exhibited in Mr. Whelan's Affidavit. The Applicants made the three experts available for cross-examination by the Respondents' Counsel. However, only Mr. Sugars was cross-examined.

4. In his report, Mr. Sugars set out to demonstrate that the location of a halting site at Blackglen Road was inconsistent with the persistent policy of the Respondent and its predecessor, Dublin County Council, over the previous ten years, which was to refuse planning permission for any development accessed from Blackglen Road, on the grounds that such development would create a serious traffic hazard because of the inadequacy of Blackglen Road, and of the inadequacy of the water supply and the deficiency of the drainage system. Mr. Sugars expressed the opinion that the site at Blackglen Road is totally inadequate for use as a halting site for, inter alia, the following reasons:

5. In his oral testimony, Mr. Sugars expressed the opinion that the rationale underlying the planning policy of the second named Respondent and its predecessor, as evidenced by previous planning decisions in relation to land abutting Blackglen Road, was based on sound logical criteria, on common sense and represented good planning policy. In relation to the proposal to locate a halting site at Blackglen Road, he testified that the proposal would not work and it could not meet basic criteria. He opined that, if he were to lodge a planning application for the proposal, the application would be refused and the planning authority would be acting properly in refusing it.

6. Mr. McCann, in his report, stated that the Blackglen Road functions as a local distributor, district distributor and outer circumferential ring road between Blackrock and Tallaght. He stated his belief that a permanent traffic counter maintained by the second named Respondent near Lamb Doyles Public House records an average daily weekday flow on Blackglen Road between Monday and Friday of 16,600 vehicles. He inspected Blackglen Road in the vicinity of the proposed halting site on the afternoon of Thursday 6th July, 1995 between 5.00 p.m. and 6.00 p.m., at a time when there was heavy traffic travelling east-west at a very low level of speed and service. He noted -

7. Mr. McCann concluded from his inspection that the traffic volumes greatly exceeded the capacity of the road with consequent severe reduction in the level of service and significant increase in traffic hazard to pedestrians, cyclists and vehicles. He summarised his opinion as follows:

8. Dr. Meehan expressed the opinion in his report that the location of a halting site at Blackglen Road would be contrary to the proper planning and development of the area and would constitute a material contravention of the relevant development plan, that is to say, the 1993 Dublin County Development Plan (the Development Plan). The site is located within an area zoned F - to preserve and provide for open space and recreational amenities. While the location of halting sites is "permitted in principle" in an area zoned F, by the terms of the Development Plan "permitted in principle" is subject to compliance with relevant policies, standards and requirements set out in the Development Plan. Dr. Meehan expressed the view that the implementation of the proposal to locate a halting site at Blackglen Road would be at variance with the policies, standards and requirements set out in the Development Plan in the following respects:

9. Dr. Meehan also referred to the objectives set out in the Development Plan of providing or securing the provision of sites for the settlement of travelling families who normally reside in Dublin County and the objective of re-establishing the Joint Sub-Committee for the settlement of Travelling People in the Dublin area to further that objective and to assist in the implementation of the settlement program. He contended that, pending the re-establishment of the Joint Sub-Committee, a halting site development of the nature and extent proposed at Blackglen Road is premature and at variance with the stated procedural objective set out in the Development Plan. In all of the foregoing respects, Dr. Meehan contended that the implementation of the proposal would materially contravene the Development Plan.

10. The evidence adduced by the Respondents in response to the application and in support of their Statement of Opposition comprised Affidavits of three officials of the second named Respondent, namely, Ciaran Ryan, an administrative officer in the Housing Department, Richard Cremins, Senior Planner and Patrick Dullaghan, County Engineer. These Affidavits identified a Managers Order made by the first named Respondent on 23rd June, 1995 as being the relevant decision. Each of the deponents was cross-examined by Counsel for the Applicants.

11. Before outlining what the evidence establishes as to the context and manner in which the Order dated 23rd June, 1995 was made, I propose considering what the Order shows on its face. As is usual, the Order is preceded by a report, in this case a report from the Senior Administrative Officer in the second named Respondent's housing department. The Order was expressed to be made in accordance with the provisions of the Housing Acts, 1966 to 1992 and granted approval for the carrying out of the works detailed in that report and shown on a drawing identified, that is to say, "to develop a temporary Halting Site at Blackglen Road, Sandyford for a maximum of 20 families". The report recorded the following matters:

12. On the evidence, I find that the sequence of events which led to the making of the Order dated 23rd June, 1995 was as follows:

13. This is the report from the County Engineer which is recorded in the report to the first named Respondent on foot of which the Order of 23rd June, 1996 was made.

14. This is the report from the County Planning Officer which is recorded in the report on foot of which the Order of 23rd June, 1995 was made. A supplemental report was submitted by the County Planning Officer on 28th June, 1995 in which he indicated that a small portion of the site, in the vicinity of the entrance, is zoned G with the objective 'to protect and improve high amenity areas'. It was indicated that a halting site is 'permitted' in this zone.

15. The specific concerns raised by the Applicants' experts were addressed in the Affidavits filed on behalf of the Respondents and in the oral testimony of the deponents. Mr. Patrick Dullaghan, the County Engineer, averred that during 1995 a figure in the order of £60,000 was expended by the second named Respondent on Blackglen Road in resurfacing and marginal widening. A footpath will be provided for the residents of the temporary halting site enabling the residents to access the present roadside footpath at Blackglen Road leading to Lambs Cross. There will be a splayed vehicular access with adequate with sight lines. Public lighting will be provided. As it has proved impossible to tap into the public water main at Blackglen Road, a new source of water supply has had to be identified. It is proposed to pipe the water from the existing reservoir at Sandyford Road by means of an underground pipe through a clearing in Fitzsimons Wood. The design of the halting site prepared by the Consulting Engineers provides for the provision of storm drainage to an adjacent storm drain, which has spare capacity. Foul sewerage will be discharged to an adjacent foul sewer, which has spare capacity.

16. Richard Cremins, in the Affidavit sworn by him and in his oral testimony, disputed that decision to locate a temporary halting site at Blackglen Road is at variance with the policy of the second named Respondent and its predecessor, as evidenced by decisions on previous planning applications. He contended that the planning history illustrates that the policy was to oppose "one of" housing fronting directly onto Blackglen Road. He also disputed Dr. Meehan's assertion that the implementation of the proposal would materially contravene the Development Plan and I will return to this aspect of his evidence later.

17. No direct evidence was adduced by the Respondents as to the considerations to which the first named Respondent had regard in making the Order of 23rd June, 1995 in the form of an Affidavit sworn by or oral testimony of the first named Respondent himself, a fact which was commented on critically by Counsel for the Applicants. The evidence clearly establishes that the first named Respondent had before him the report of the Senior Administrative Officer in the housing department, to which the Order is appended, which incorporates the advice of the County Planning Officer and the County Engineer. In my view, the failure of the Respondents to adduce direct evidence is not a matter which should give rise to any adverse inference against the Respondents.

18. Before leaving the evidence, it is perhaps worth noting that the evidence clarifies certain factual matters of which the Applicants were not aware when this application was instituted and when their claim for relief was framed. First, the proposed halting site will comprise 20 bays and house 20 travelling families. Each bay will accommodate two caravans but, on the evidence, only a small percentage of traveller families have two caravans. Secondly, while a decision in principle to proceed with the development of the site at Blackglen Road was made in early April 1995, the Order of the first named Respondent was actually dated 23rd June 1995.

19. The grounds on which the Applicants contend that they are entitled to the relief claimed are as follows:

20. The last ground is unsustainable. Article 34 of the Local Government (Planning & Development) Regulations, 1990 (S.I. No. 25/1990), on which the Applicants rely, was repealed by the Local Government (Planning & Development) Regulations, 1994 (S.I. No. 86/1994). Article 116 of the 1994 Regulations replaces Article 34 and provides as follows:

21. Article 24 of the European Communities (Environmental Impact Assessment) Regulations 1989 (S.I. No. 349/1989) provides that development of the class as set out in Part I and Part II of the first schedule to those regulations is specified for the purposes of those regulations. The Applicants contend that the proposed halting site comes within paragraph 11(a) of Part II of the first schedule which itemises -

22. The proposed halting site will accommodate a maximum of 40 caravans and clearly does not come within paragraph 11(a).

23. Counsel for the Respondents submitted that the parameters of this Court's power to quash the managerial order of 23rd June, 1995 are defined by the decision of the Supreme Court in O'Keeffe -v- An Bord Pleanala , (1993) 1 I.R. 39. While Counsel for the Applicants acknowledged that the principles enunciated by the Supreme Court in that case are applicable in determining issues which arise on this application, it was contended that they are not exclusively applicable. Nonetheless, before considering the remaining grounds relied on by the Applicants, I think it is important to summarise the principles laid down by the Supreme Court as to the circumstances under which this Court can intervene to quash the decision of an administrative officer or tribunal on the grounds of unreasonableness or irrationality, which are set out in the judgment of Finlay C.J. at page 70 et seq. The principles are as follows:

24. While the decision impugned on this application is not a planning decision per se, in essence, the Applicant's challenge is founded on planning considerations. In short, they say that the decision to locate the halting site at Blackglen Road is a bad planning decision.

25. While the proposed development of the halting site at Blackglen Road, which is in the functional area of the second named Respondent, is an exempted development under Section 4(1) of the Local Government (Planning & Development) Act, 1963 (the 1963 Act), Section 39 of the 1963 Act precludes the Respondent from effecting any development which contravenes materially the Development Plan. Counsel for the Applicants argued that decisions of this Court, for instance, the decision of Flood J. in Tom Chalke Caravans Limited & Anor. -v- Limerick County Council , (unreported) delivered on the 20th day of December, 1991 and the decision of Carney J. in Keogh -v- Galway Corporation (unreported) delivered on 9th September, 1994, illustrate that the issue as to whether a proposed development materially contravenes the relevant development plan is determined without reference to the O'Keeffe principles. There are undoubtedly situations, as the cases cited illustrate, in which the O'Keeffe principles have no part to play in determining whether a proposal would constitute a material breach of a development plan. For instance, the second named Respondent's current development plan might have provided that halting sites are not permitted on lands zoned F and G, in which case the proposed development at Blackglen Road would clearly constitute a material contravention. However, as the evidence established, halting sites, which, in my view, includes temporary as well as permanent halting sites, are "permitted in principle" on the site at Blackglen Road "subject to compliance with relevant policies, standards and requirements" set out in the Development Plan. In my view, where a controversy arises on judicial review as to the application of the relevant policies, standards and requirements stipulated in a development plan, that controversy must be resolved by reference to the O'Keeffe principles.

26. In relation to the three specific infringements contended for in Dr. Meehan's report, the Respondent's position is as follows:

27. In my view, the Applicants have not established that the decision to locate the temporary halting site at Blackglen Road infringes the policies and objectives of the Development Plan in relation to the preservation of views and prospects and the protection of areas of scientific interest. It is clear from the evidence that, before the Order dated 23rd June, 1995 was made, the relevant officials of the second named Respondent were conscious of the material provisions of the Development Plan and made value judgments as to compliance with those provisions. In my view, one cannot conclude that those judgments fly in the face of fundamental reason and common sense and, accordingly, on the basis of the O'Keeffe principles, a decision founded on those judgments is neither unreasonable nor irrational. Moreover, in my view, non-implementation of the stated objective to re-establish the Joint Sub-committee does not in any way preclude the second named Respondent from implementing in the manner proposed in the Order its statutory duty under Section 13 of the Housing Act, 1988, which has been recognised by this Court in the judgment of Barron J. delivered on 21st February, 1991 in University of Limerick -v- Ryan & Ors . (unreported) and the judgment of Flood J. in County Meath VEC -v- Joyce (1994) 2 I.L.R.M. 210, to provide halting sites for travellers.

28. It was contended on behalf of the Applicants that the evidence shows that the decision making process of the Respondents was irrational and that it resulted in an unreasonable and irrational decision. The Respondents, it was contended, turned reason on its head in deciding in the first and second week in April 1995 to locate the halting site at Blackglen Road and thereafter attempting to give it a veneer of rationality. The decision is contrary to the clear planning policy of the second named Respondent during the previous ten years. In particular, it ignores the second named Respondent's stated policy on road traffic and runs counter to it. At the time it was made, no proper regard was had to sewerage disposal or water supply. There were and are no services, educational, social and such like, available to service the halting site. The project itself if grossly disproportionate to all other halting site projects in the second named Respondent's functional area. Its capital cost represent three times the second named Respondent's annual allocation from the Department of the Environment in respect of halting sites in the previous two years. The halting site is designed to accommodate a great number of travellers of indeterminate category. A combination of these factors, it was argued, has produced a decision which flies in the face of fundamental reason and common sense.

29. On the evidence, I find that the decision to locate the halting site at Blackglen Road was a departure from the prevailing planning policy of the second named Respondent and its predecessor in relation to the development along Blackglen Road, as evidenced by planning decisions during the previous ten years, which seems to me to be an appropriate period over which to assess the planning policy. Moreover, I think it is probable that had a private developer embarking on a commercial project sought planning permission for a caravan or mobile home park at the site of the proposed halting site, permission would have been refused. Neither of these factors renders the decision to partially fulfill the second named Respondent's objective in relation to traveller accomodation by locating a temporary halting site at Blackglen Road irrational.

30. I also find that the decision in principle to proceed with the development of a temporary halting site was made at the beginning of April 1995 and that there is a high degree of probability that the only factor which would have resulted in its reversal was the unavailability of funding from the Department of the Environment. At that time no alternative solution to the second named Respondent's immediate traveller accommodation problems had been under consideration for three months. Between the time the decision in principle was made and the time it was formalised in the manner required by law, Consulting Engineers were retained and the views of the relevant departments of the second named Respondent were elicited. What occurred during this period, in my view, is not fairly characterised as merely an attempt to give a veneer of respectability to the decision. On the contrary, concerns in relation to the project were identified and the need to address them was recognised. In my view, even if the ultimate technical solution to a particular difficulty, for example, the provision of the footpath, had not been determined by 23rd June, 1995, this of itself would not have rendered the formal decision made on that day irrational.

31. Of the concerns raised by the Applicants in relation to the proposed development, the risk of traffic hazard, in my view, is the gravest. There is undoubtedly a formidable array of evidence before this Court that the proposed development will constitute a significant risk to road users: the inferences which can be drawn from the second named Respondent's prevailing planning policy in relation to Blackglen Road, the views expressed in the minute dated 28th April, 1995 from the Roads and Traffic Department and the opinions of Mr. Sugars and Mr. McCann. On the other hand, when he made his formal decision, the first named Respondent had before him the advice contained in the minute dated 12th June, 1995 from the County Engineer, which was based on a layout prepared by the Consulting Engineers. In applying the O'Keeffe principles in reviewing the formal decision which was made on 23rd June, 1995, it is not the function of the Court to evaluate the evidence before the Court on the merits or to assess whether the opinions of Mr. Sugars and Mr. McCann are to be preferred to the opinion of the County Engineer. The question for this Court is whether there was material before the first named Respondent on which he could base the decision to proceed with the proposal. In my view, there was.

32. I have come to the conclusion that the Applicants have not surmounted the difficult hurdle which the O'Keeffe principles place before a person who seeks to challenge an administrative decision on the ground of irrationality and they have not discharged the onus of establishing that the decision of 23rd June, 1995 was irrational in accordance with those principles.

33. Finally, the Applicants challenged the utilisation by the first named Respondent of the "emergency" procedure available under Section 27 of the 1988 Act. It is not disputed that the decision made by the first named Respondent is an executive function within the meaning of Section 17 of the County Management Act, 1940. However, subsection (7) of Section 2 of the 1955 Act requires a manager to inform the members of a local authority before any works (other than works of maintenance or repair) of the local authority are undertaken. Subsection (9) of Section 2 provides that nothing in the foregoing provisions of Section 2 shall prevent the manager from dealing forthwith with any situation which he considers is an emergency situation calling for the immediate action without regard to those provisions. Section 27 of the 1988 Act amended Section 2 of the 1955 Act by the insertion of the following subsection after subsection (9):

34. The practical consequence of a manager being able to deal with a particular situation under subsection (9) of Section 2 is that the provisions of Section 3 of the 1955 Act are obviated. Section 3 empowers a local authority which has been informed pursuant to Section 2 of any works (not being works which the local authority are required by or under statute or by order of a Court to undertake) to direct that the works shall not be proceeded with. The Applicants contend that the onus is on the Respondents to show that the "emergency" procedure was properly invoked and, in particular, that the first named Respondent had regard to the factors which he is required to have regard to - personal health, public health and safety considerations. A recital of the relevant provision in the report on foot of which the Order of 23rd June, 1995 was made is not sufficient, it was submitted. I reject this submission. On this application, the onus is on the Applicants to establish that the decision is ultra vires, as they assert; it is not on the Respondents to establish that it is intra vires.

35. The use of the "emergency" procedure was also impugned on the ground that it was used in a manner which offends the principle of proportionality. The emergency which had to be met, so the argument goes, was the imminent necessity to relocate the six families on the site at Merville, which the second named Respondent was by Court Order obliged to close on 1st June, 1995. The provision of a 20 bay halting site is disproportionate the objective of dealing with that emergency. Even if I were to accept the proposition that the first named Respondent was only to entitled to utilise the "emergency" procedure to resolve the Merville problem and not the problem of roadside and unauthorised encampments, I am not satisfied that the Applicants have demonstrated that the principle of proportionality, as most recently enunciated by Costello P. in Daly -v- Revenue Commissioners (1996) 1 I.L.R.M. 131, is applicable. The rationale underlying the principle of proportionality is the protection of constitutional rights by requiring that any restriction on the exercise of those rights permitted by law passes a proportionality test. In this case, there is no evidence whatsoever that the invocation of the "emergency" procedure infringed a constitutionally protected right of any of the Applicants.

36. I conclude that the Applicants are not entitled to any of the reliefs claimed and I dismiss the application.